Courts Divided Over Searches of Cellphones
by Smni Sengupta, NYR, November 25, 2012
Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide. …“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”
For full text of the article, visit Legality of Warrantless Cellphone Searches Goes to Courts and Legislatures – NYTimes.com.
- On police searches of cellphones, legal consensus elusive (mysanantonio.com)
- Americans’ Right To Privacy Is Taking A Huge Hit From The Courts (businessinsider.com)
- Consensus Eludes Courts in Searches of Cellphones (nytimes.com)
- Should Cell Phones Be Subject to Search Without a Warrant? (usnews.com)
- Senate bill to allow warrentless government access to your online services (pcworld.com)
by David Kravets, Threat Level, Wired, October 2, 2012
California Gov. Jerry Brown has vetoed legislation that would have required the state’s authorities to get a probable-cause warrant signed by a judge to obtain location information from electronic devices such as tablets, mobile phones and laptops. The measure passed the state Senate in May and the Assembly approved the plan in August. … Brown, a Democrat, last year vetoed a measure requiring police officers to obtain a warrant before searching someone’s cellphone after arresting them. That leaves California police officers free to search through the mobile phones of persons arrested for any crime. …
For full text of the article, visit California Governor Vetoes Landmark Location-Privacy Law | Threat Level | Wired.com.
by Jess Kamen, Politico Morning Tech, Oct 2, 2012
Courts and legislatures around the country are struggling with where to draw the line on government access to your electronic data. A federal appeals court in New Orleans [recently heard] oral arguments in a case involving the government’s ability to review location data from cellphone companies. To obtain the information, lower courts have ruled that the government needs a search warrant supported by probable cause. The government argues that the information is cellphone company business records, and cellphone users have given up some degree of privacy when they give up their location information.
California Gov. Jerry Brown vetoed a bill that would have required law enforcement to get a search warrant before obtaining any location information from any device. ‘It may be that legislative action is needed to keep the law current in our rapidly evolving electronic age,’ said the governor in his veto message, adding he was not ‘convinced’ the bill struck the right balance between the needs of law enforcement and individual privacy. http://tinyurl.com/8kx9s4x
- Gov. Brown vetoes requiring a warrant for cellphone location info (latimesblogs.latimes.com)
- Governor Brown Vetoes California Electronic Privacy Protection. Again. (eff.org)
- California Governor Vetoes Landmark Location-Privacy Law (wired.com)
- Cell phone location data not private, Feds argue (computerworld.co.nz)
By Timothy B. Lee, Ars Technica, March 7, 2012
A Maryland court last week ruled that the government does not need a warrant to force a cell phone provider to disclose more than six months of data on the movements of one of its customers. … Judge Richard D. Bennett ruled that a warrant is not required to obtain cell-site location records (CSLR) from a wireless carrier. … The Obama administration laid out its position in a legal brief last month, arguing that customers have “no privacy interest” in CSLR held by a network provider. Under a legal principle known as the “third-party doctrine,” information voluntarily disclosed to a third party ceases to enjoy Fourth Amendment protection. …
For full text of this article, visit Obama admin wants warrantless access to cell phone location data.
- Obama admin wants warrantless access to cell phone location data (arstechnica.com)
- United States v. Flores-Lopez (jolt.law.harvard.edu)
- Court Ruling Opens Phones To Warrantless Searches (forbes.com)
- New CRS Report on Governmental Tracking of Cell Phones and Vehicles (geodatapolicy.wordpress.com)
by Aaron Brauer-Rieke, CDT, February 8, 2012
Against the backdrop of controversy surrounding the use of monitoring software pre-installed on mobile phones, Rep. Edward Markey (D-MA) recently released a draft bill requiring clear disclosure and express consent before monitoring software is used. … Markey’s bill requires several kinds of companies to clearly disclose details about monitoring software and obtain express consent before putting such software to use. The entities obligated to observe these requirements are those that (1) sell mobile phones, (2) provide commercial mobile services, (3) manufacture phones, or (4) operate a “website or other online service from which a consumer downloads monitoring software.” The bill also requires the user to consent to the software’s operation before it can begin collecting and transmitting information. …
For a summary and analysis of this bill by the Center for Technology and Democracy, visit Bill Requires Permission for Mobile Monitoring Software | Center for Democracy & Technology.
- Congressman Proposes Legislation to Outlaw Mobile Device Snooping (techland.time.com)
- Lawmaker Pushes Consumer Notification Bill in Wake of Carrier IQ Concerns (pcworld.com)
- “Mobile Device Privacy Act” would prevent secret smartphone monitoring (arstechnica.com)
- New Mobile-Phone Privacy Law Proposed (wired.com)
by Richard M. Thompson, Law Clerk,Congressional Research Service Report #R42109, December 1, 2011
Technology has advanced considerably since the framers established the constitutional parameters for searches and seizures in the Fourth Amendment. What were ink quills and parchment are now cell phones and the Internet. It is undeniable that these advances in technology threaten to diminish privacy. Law enforcement’s use of cell phones and GPS devices to track an individual’s movements brings into sharp relief the challenge of reconciling technology, privacy, and law. Beyond the Constitution, a miscellany of statutes and cases may apply to these tracking activities. One such statute is the Electronic Communications Privacy Act of 1986 (ECPA), P.L. 99-508, 100 Stat. 1848 (1986), which protects individual privacy and governs the methods by which law enforcement may retrieve electronic communications information for investigative purposes, including pen registers, trap and trace devices, wiretaps, and tracking devices. The primary debate surrounding cell phone and GPS tracking is not whether they are permitted by statute but rather what legal standard should apply: probable cause, reasonable suspicion, or something less.
By Jim Dempsey, ArsTechnica Published October 21, 2011 11:07 AM
Op-ed: Twenty-five years after it was passed, the Electronic Communications Privacy Act still governs much of our privacy online, and the Center for Democracy and Technology argues that ECPA needs an overhaul. The opinions in this post do not necessarily reflect the views of Ars Technica.
Cell phones the size of bricks, “portable” computers weighing 20 pounds, Ferris Bueller’s Day Off, and the federal statute that lays down the rules for government monitoring of mobile phones and Internet traffic all have one thing in common: each is celebrating its 25th anniversary this year.
For full text of the article, visit Op-ed: The shocking strangeness of our 25-year-old digital privacy law.